167 F.

3d 667

UNITED STATES, Appellee,

v.
Lee H. LEICHTER, Defendant, Appellant.
United States, Appellee,
v.
John F. Cvinar, Defendant, Appellant.
United States, Appellee,
v.
David W. Prigmore, Defendant, Appellant.
Nos. 97-1358, 97-1359, 97-1478.

United States Court of Appeals, First Circuit.

Jan. 21, 1999.

Before: TORRUELLA, Chief Judge, SELYA, BOUDIN, STAHL, and

LIPEZ, Circuit Judges.
ORDER OF THE COURT
The United States has filed a petition for rehearing en banc in these cases.
The governing statute, 28 U.S.C. 46(c), and the applicable procedural
rule, Fed.R.App.P. 35(a), require the votes of "a majority of the circuit
judges of the circuit who are in regular active service" to grant a petition
for rehearing en banc. We construe this language to require that an
absolute majority of the court's active judges vote in favor of the petition.
See United States v. Nixon, 827 F.2d 1019, 1020-21 (5th Cir.1987); Lewis
v. University of Pittsburgh, 725 F.2d 910, 928-30 (3d Cir.1984)
(statement sur petition for rehearing of Adams, J.); Clark v. American
Broadcasting Cos., 684 F.2d 1208, 1226 (6th Cir.1982); Boyd v. Lefrak
Organization, 517 F.2d 918, 918 (2d Cir.1975); Zahn v. International
Paper Co., 469 F.2d 1033, 1040-41 (2d Cir.1972); but see Arnold v.
Eastern Air Lines, Inc., 712 F.2d 899, 904 (4th Cir.1983) (holding that the
phrase "regular active service" should be construed as a case-specific
suggestion, referring to judges who, for example, had not recused
themselves from participating in a particular case) (opinion of Murnaghan,
J.). We note, however, that vacant judgeships are to be excluded from the

count. See United States v. Martorano, 620 F.2d 912, 920 (1st Cir.1980)
(holding that a vacant judgeship does not constitute a judge "in regular
active service").
This court currently has six authorized judgeships. See 28 U.S.C. 44(a).
There are no vacancies. In this instance, three active judges (Selya, Stahl,
and Lipez, JJ.), believing that these consolidated appeals involve a
question of exceptional importance and doubting the correctness of the
panel opinion, have voted in favor of rehearing en banc. Two active
judges (Torruella, C.J., and Boudin, J.), believing that the panel opinion
reaches a correct result, have voted against rehearing en banc. One active
judge (Lynch, J.) has recused herself from any participation in these
cases.1

Under the "absolute majority" rule, four votes are required to grant rehearing en
banc when, as now, the court is at full strength. Consequently, the petition for
rehearing en banc is denied.

Judge Campbell, who is on senior status, was a member of the original panel
and dissented from the panel opinion. Although he would therefore be eligible
to participate in a rehearing en banc, he is not eligible to vote on whether such a
rehearing should be granted. See 28 U.S.C. 46(c)